Posted by Sharon Nunley on 1/11/07 11:10am
Msg #170306
clarification on affidavits
I was reading through #33325 and all of the information posted with it, when I came across a posting of a gentlemen that said he had received a "survey affidavit w/o notarial wording" on it. He learned later that a loose jurat would be placed with such an affidavit.
Am I understanding correctly that all affidavits must be notarized (ack or jurat) and sometimes they may be sent from the lender w/o certificate wording?
| Reply by PAW on 1/11/07 11:23am
Msg #170308
An affidavit is merely a statement by the principal (signer). Most, but not all, affidavits have a jurat and the signer must take an oath (affirmation). If a document does not have notarial wording, then so be it. It is not up to the notary to determine if a notary certificate is needed or required. So, unless directed otherwise, if you have an affidavit that does not have a jurat or other certificate or instructions to attach a certificate, then just have the signer sign it and move on.
| Reply by Calnotary on 1/11/07 11:24am
Msg #170309
Not all affidavits need to be notarized.
Some dont show wording of a jurat or ack, so you dont notarize that one.
Some have instructions to attach a loose certificate, then you attach one if it says which type of certificate it needs. Otherwise you need to call the hiring entity and ask them what certificate they want, but this will put you in a bad situation because they will question your knowleadge. Read your handbook again and that will clear all your questions.THIS IS JUST AN OPINION.
| Reply by Roger_OH on 1/11/07 1:37pm
Msg #170351
My take has been that an affidavit, by its very nature, is a sworn statement and and requires a jurat; otherwise the document is just a statement, or perhaps an acknowledgement, but not an affidavit. We often hear the term "sworn affidavit", and I was always under the impression that any affiant had to be sworn in.
Be interested in the legal definition of an affidavit...
| Reply by PAW on 1/11/07 1:54pm
Msg #170360
By definition an affidavit is "a sworn statement in writing made esp. under oath or on affirmation before an authorized magistrate or officer". (Merriam-Webster Dictionary of Law - 1994) It doesn't state that the act be certified (by attachment of a certificate, i.e. jurat).
In FL, we have a statute on the books that requires us to use a jurat on an affidavit if an acknowledgment is present. F.S. 117.03 states, "Administration of oaths - The notary public may not take an acknowledgment of execution in lieu of an oath if an oath is required." However, if NO certificate is present, there is nothing telling us that one must be attached.
| Reply by Susan Fischer on 1/11/07 2:08pm
Msg #170365
Here you go - Legal definition:
"Affidavit. A written or printed declaration or statement of facts, made voluntarily, and confirmed by the oath or affirmation of the party making it, taken before a person having authority to administer such oath or affirmation. State v. Knight, 219 Kan.863, 549 P.2d 1397, 1491. See also Jurat; Verification."
Black's Law Dictionary, 1990, page 58.
| Reply by Calnotary on 1/11/07 2:13pm
Msg #170370
Re: Here you go - Legal definition:
So what do you do in CA when there is an affidavit that has an ack instead of a jurat? Cross the ack and stamp it with your jurat stamp?
Thank you.
| Reply by Susan Fischer on 1/11/07 2:36pm
Msg #170379
Re: Here you go - Legal definition:
"Jurat. Certificate of officer or person before whom writing was sworn to. In common use, term is employed to designate certificate of competent admistering officer that writing was sworn to by person who signed it. The clause written at the foot of an affidavit, stating when, where, and before whom such affidavit was sworn. U.S. V. McDermott, 140 U.S. 151, 11 S.Ct. 746, 25 L.Ed. 391; U.S. v. Julian, 162 U.S. 324, 16 S.Ct. 801, 40 L.Ed. 984. See also Affidavit, Verification."
Black's Law Dictionary, page 852.
My guess is that it is not an affidavit if it is no so certificated. Otherwise, it is just some statement in writing. At least according to the US Supreme Court.
| Reply by Larry/Ca on 1/11/07 3:23pm
Msg #170390
Nope, many affitavits in the packages...
have acknowledgement wording and that is the act they get if thats what they have determined they need. Interesting that in Florida PAW says by law he MUST use a jurat.
PAW, does your state also say that you cannot make the determination of notarial act needed like California does?
Larry
| Reply by PAW on 1/11/07 3:40pm
Msg #170394
Re: Nope, many affitavits in the packages...
Yep. We cannot make any determination of what act is required. However, if an ack is provided when an oath is required, then, by statute, we must use a jurat. If nothing is there, nothing gets certified by the notary.
I always use a loose jurat in these cases. And on my jurat, there is a check box that states:
[_] IF THIS BOX IS CHECKED this loose jurat certificate is being attached, pursuant to Florida Statutes §117.03 Administration of oaths - The notary public may not take an acknowledgment of execution in lieu of an oath if an oath is required.
But, again, if there is no notary certificate, then we cannot make the determination that a jurat would be required, so none would be attached. (Seems a little unreasonable to me, but without something there, we would be determining that something is needed, which is UPL. Even if the document states, "sworn to" or "affirmed" or other indications that the signer must swear to the facts.)
| Reply by Larry/Ca on 1/11/07 3:51pm
Msg #170397
Paw, this Sworn to or affirmed above...
the signature line I take as indication that this document needs notarization. What more do you require to indicate your need to notarize this document?
Larry
| Reply by PAW on 1/11/07 3:59pm
Msg #170400
Re: Paw, this Sworn to or affirmed above...
We don't notarize documents. You notarize signatures. And you don't always have to provide a jurat when you place someone under oath. Depositions are a prime example where a jurat is not used to certify that the deponent was placed under oath.
Since a non-attorney notary cannot choose what certificate to use, or even if a certification is required, if none is present, then it is up to the author, recipient or signer to determine if a certification by the notary is required. If one is provided, then it must, by statute, be a jurat if an oath is required.
| Reply by Larry/Ca on 1/11/07 4:13pm
Msg #170402
PAW, yes signatures, but my question is...
you do not notarize signatures when only Subscribed and Sworn to or affirmed is printed above the signature line? Many, many signatures I need to notarize or would have to return to notarize only have these words. I take missing verbage to be the same as wrong verbage and "proved to me on the basis of..... is often missing.
Larry
| Reply by PAW on 1/11/07 4:23pm
Msg #170405
Re: PAW, yes signatures, but my question is...
I misunderstood your post. If there is a "Subscribed and Sworn to" after then signer's signature, then yes, that's a incomplete jurat. But if there is no certificate of any kind, then none gets added.
I know there's lots of affidavits that have the signatures to the right side of the paper and the "Sworn to and subscribed before me this day" and a notary signature line on the left. Again, that's an incomplete jurat which needs to be correct to be compliant.
| Reply by Susan Fischer on 1/11/07 4:17pm
Msg #170404
Re: Nope, many affitavits in the packages...
And just because a document has "AFFIDAVIT" as a title, doesn't, in fact, make it an affidavit.
I didn't say I would make a decision as to what notorial act is needed; an OR notary, as with many other states, cannot determine that.
My response was the definition of a jurat, in order to show that a document is not an affidavit without a one.
If I administer an oath, I attach a jurat stating the particulars, if necessary. I really like PAW's checkbox.
| Reply by MikeC/NY on 1/11/07 3:31pm
Msg #170392
Here in NY (and in most other states, I'm sure), deciding whether to use a jurat or an acknowledgment is not up to the notary. If there's no notarial wording and you think a notarization may be required, you need to check back with whoever sent the document. Even if you KNOW which form you need from personal experience, making that decision without guidance could be considered UPL.
| Reply by PAW on 1/11/07 3:50pm
Msg #170396
Exactly
As I stated earlier, if there's nothing there, nothing gets added. That's UPL. Changing an existing ACK to a jurat would also be considered UPL if it weren't for that statute. There are many times a jurat is used when we know it should be an acknowledgment, but we can't change it. Same goes for some documents that have acks that really should be jurats, but there's no indication that the signer must be placed under oath to make the statements. Affidavits, on the other hand, typically state in the preamble or first paragraph that the signer is swearing to the document, or at least is under oath when making the statement. Typical wording found is, "... being first duly sworn, depose and say:" But, the statute doesn't say that a jurat must be attached certifying that the signer was placed under oath. Only the the signer was duly sworn.
| Reply by Elizabeth_CA on 1/12/07 4:55pm
Msg #170599
Re: Exactly
Sometimes, you get both "Sworn and Subscribed" and "personally appeared" on the notarial wordings like it's a combo jurat and acknowledgment. In CA, you have one or the other but not both. I draw a diagonal line over the notarial wordings and write "See attached ack" and attach an acknowledgment. I also place the 2 sheets side by side and stamp them together so that the top part of the stamp is on one sheet and the bottom part of the stamp is on the other sheet. This way I don't have to complete "other info" on the acknowledgement. I haven't received any back. Note that if I have to attach a certificate on the DOT or any deed, I don't sideway stamp.
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